Alternative Dispute Resolution known as A.D.R. is a process of settling or deciding disputes outside of the traditional courtroom where a decision is made publicly by a judge and/ or a jury. The most common forms of ADR are Mediation and Arbitration. There are other types of ADR and some forms which combine them such as Med Arb which combines mediation with arbitration. Read our post on ADR Choices to learn about more dispute resolution options.
A mediator works to help bring the parties to their own agreement. The mediator helps the parties communicate and, during the mediation, is the one who delivers and discusses offers and counter-offers to and from each party. Usually mediators avoid giving advice or making recommendations, but instead, try to help each party see the other side’s point of view and the strengths and weaknesses of each side’s case. A mediator considers what a reasonable compromise solution is for every dispute. A mediator gets a sense of how far each party appears to be willing to go and when that point is reached in negotiations plays a vital role in helping parties consider factors necessary to settle the case or decide to reject a final offer. Sometimes offers are kept open after the mediation date and further mediation efforts can also take place to continue the process. Mediation is most effective when it is interest based rather than rights based. That means people can come to decide to do what is in their best interest and compromise, rather than keep a dispute unresolved to their detriment because of principles of who is right and who is wrong. In an interest based mediation people will compromise to end a dispute sooner and have the best result rather than fail to agree because each side thinks the law and/or truth and justice is with them. Mediation is a “win win” process where settlements are made that all parties are content to live with instead of the all or nothing result from a trial judgment or arbitrator’s award.
An Arbitrator is a private judge who decides the issues in dispute based on evidence and the law as it applies to the dispute. The parties are able to choose their own judge with the qualifications they believe are needed to decide the dispute. It is rights based in the same way that court is where usually one side wins and the other loses. This ADR process may or may not require a formal hearing and evidence to be called through witnesses. Arbitration is a process with flexible rules where the parties can agree on an efficient way to get evidence to the arbitrator to form the basis for a decision resolving the dispute. They can save on the costs of a hearing by proceeding to present evidence in a different way. This can be very informal, efficient and different than court proceedings. When arbitration is used without planning the process for the particular dispute, it can be more costly and lose much of its advantage over court. Arbitration is a type of A.D.R. that is used when settlement can not be achieved and someone is needed to make a decision. An Arbitrator decides issues when the parties are unable to agree. Parties may be forced to go to arbitration by an existing contract or law or they may choose to go to arbitration rather than court and make an arbitration agreement. Within arbitration there are opportunities for negotiation, mediation and settlement. People need to be very careful when using an arbitrator to mediate a dispute if that arbitrator may end up having to decide based only on the evidence if there is no settlement. The arbitrator must be careful in these situations to avoid being forced to disqualify themselves if there is no settlement. The arbitrator may learn things in discussions off the record that make it impossible to fairly make a decision based on the evidence presented. In that situation the arbitrator may have to resign and a new arbitrator would be selected with added expense and delay.
We believe that most disputes can be resolved by agreement with the help of an independent facilitator who mediates between the parties or otherwise assists. It is safer when the Arbitrator does not act as Mediator. When you can not settle it is often preferable to have your dispute decided by a qualified and independent arbitrator rather than going to court. Arbitration is a more private process which can also be quicker than court with less chance for appeal after the decision is made. The parties can limit or eliminate the right of appeal from an arbitrator but they can not take away the right of a losing party to have a court review a decision based on lack of fairness in the process. An expert arbitrator with qualifications in a field relevant to the issues of the case is better equipped to decide a technical dispute than a judge.
For disputes between people and companies in different countries International Arbitration is generally better than court due to distrust of foreign courts (or distrust of one’s own country’s courts) and the better ability to enforce international arbitration awards under international treaties and agreements. International mediation is less common due to the difficulty of arranging it between parties who are far apart and tend to stop communication where there is a serious dispute.